Categories
Life Thoughts

Understanding UK Distance Selling Regulations

I’ve recently been looking to purchase a piece of equipment online which is not available from big-name suppliers, only from a limited number lesser-known websites. Having no reputation upon which to base a purchasing decision, a viable method to choose between a reliable site and a potentially bad site could be to see how well each site’s Terms & Conditions comply with the legal requirements of the UK Distance Selling regulations – legal requirements which either seem to be frequently misunderstood by legitimate sellers or frequently mis-quoted by sellers who seemingly wish to shirk their responsibilities in an attempt to force unlawful terms onto unwitting customers.

For reference, the Office of Fair Trading‘s guide on distance selling is available in this PDF document.

Please note that these regulations only apply when goods are purchased remotely, without having viewed the goods prior to purchase. They in fact give consumers many more rights when making purchases via the internet than if they purchased from a shop – to the point where it in many cases no longer makes sense to purchase big-ticket items from a bricks-and-mortar shop at all!

To illustrate the issue raised above, let’s take a look at the Terms & Conditions of the first site I found selling the particular item I was interested in:

If you have simply changed your mind about any item ordered and you wish to return it, you can do so provided you inform us of your decision within 7 days of receipt. The item must not be used and must be ‘as new’ when returned to us. Once you’ve informed us that you wish to return goods, you have 14 calendar days to do so, at your own expense. Once the item is received, we refund by original payment method for unwanted items within seven days from receipt (items may be subject to a 15% restocking fee). Please note this policy has some limitations and does not apply to business customers (Distance Selling Regulations do not apply to at work customers or our Business customers).

The above is correct in so far as the DSRs, unless extended in the T&Cs, do apply for seven days from receipt of the item in question… but unfortunately this is where the compliance with the law of this passage ends.

Whilst the purchaser has a duty of care to try to maintain the condition of the purchased item, the seller is not allowed to insist upon the item being ‘as new’ and certainly not unused. Indeed, the seller must accept the item back in any condition, but may seek legal recourse if the item has been unreasonably ill-treated – although this does not remove from them the obligation to offer an immediate refund.

Once the purchaser has notified the seller that they wish to cancel their contract to purchase, the seller must offer a refund immediately: they have no legal recourse to withhold any refund until the goods are returned (and indeed if the goods aren’t returned, then the seller may only charge the purchaser for the direct cost of recovery – they cannot impose additional penalties).

The purchaser has no legally-defined time limit within which they must return the goods in order to receive a refund. The seller can certainly ask for the goods back within 14 days, but should make clear that breaching this request would not prevent a refund from being given in full.

The seller is allowed to specify that the cost of returning goods falls upon the purchaser.

As previously mentioned, the seller has no legal basis for awaiting the return of goods before offering a refund and is definitely not allowed under any circumstance to charge a restocking or administrative fee.

The distance selling regulations do indeed not apply to business customers, but the “at work customer” mentioned above has no legal definition and appears to be a term entirely of the author’s creation.

Let’s look at another:

Right to Cancel

9.1 You have a cooling off period of 14 days after the date on which you have received the Goods to cancel the Contract, and return the Goods at your cost and receive a full refund of the purchase price.

9.2 During the cooling off period any cancellation must be given by written notice by either party.

9.3 Goods must be returned complete and undamaged with all accessories and instructions. The original packing must be returned in reasonable condition.

9.4 <elided>

9.5 In the event that we supply substituted Goods to you in accordance with the provisions of Clause 2, your right to cancel is as set out as above except that the cost of returning the Goods shall be borne by us.

We’re off to a good start here – this retailer has decided to extend the mandatory seven day cooling-off period to fourteen days, and has clearly stated that the cost of returning the goods falls upon the purchaser: fine.

Requiring notification in writing (or at least by letter, fax, or email – a telephone call is not sufficient) is also correct.

Unfortunately, we hit a snag with item 9.3: Whilst the seller can ask that a purchaser return the packaging, they are unable to insist upon this.

Likewise whilst the purchaser has a statutory duty to take reasonable care of the goods, a blanket requirement of the goods being undamaged cannot be enforced.

Not bad, but still misleading in this important respect…

Finally we have a third site which specifies, in its entirety:

You have the right to cancel your purchase within seven days of purchase or seven days of receipt of the service purchased (whichever is the longer). Refunds will be made in full, upon receipt of the goods. To request a refund please email us at:-

support@<elided>

stating your details and the item(s) purchased and when they were purchased. Refunds will be made to the credit or debit card you purchased from.

… which cannot be accused of being either inaccurate or needlessly verbose!

Legally, the seller may not await receipt of the returned goods before issuing a refund – but this in a real-world context, it may be difficult to argue this point.

Note that the important thing to note here is that, since these Terms and Conditions do not specify that the purchaser is responsible for the cost of returning goods declined under the DSRs, this cost must be borne by the seller.

So there we have it – it’s well worth familiarising yourself with your legal rights when purchasing items online, as sellers large and small seem to be willing to try to hoodwink unwary customers into accepting at face-value unlawful contracts when purchasing goods at a distance.

More to the point, if you decide not to make a purchase from a website because they have a returns policy which does not adhere to the requirements of the Distance Selling Regulations, then contact the company in question and let them know that they have lost a sale for this very reason!

16 replies on “Understanding UK Distance Selling Regulations”

To the contact address of the first site mentioned, I have sent this message:


I am writing to let you know that I have decided not to place an order with yourselves due to the fact that your Returns Policy is at odds with the UK Distance Selling Regulations, and therefore unlawful. Where a customer has changed their mind over a purchase and informed you within seven days:

* You may not insist that returned goods are unused or as-new;
* You must process the refund immediately rather than awaiting the returned goods to arrive;
* Whilst you may request that goods be returned within a certain period of notification of cancellation, you must make clear that failing to return the goods within this period will not prevent a full refund being offered;
* You may not legally take any fee or administrative charge away from the value refunded.

Additionally:

* an “at work customer” has no legal meaning and is not defined elsewhere on the page;
* the link (from this page) to your full Terms & Conditions is a dead-link.

For guidance on Distance Selling Regulations, see the OTF’s Guide for Businesses at http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Hi Stuart,

Great post, it has really helped me in a situation I’m currently in.

I got these two replies to my immediate request for a refund (spelling/grammar is all theirs!):


Dear customer,

Thank you for your e-mail.

I have looked into your query and can confirm that we can only accept goods abck which have not been opened or used.

The goods will have to be returned at your own cost and if replacements are not required then a restocking fee may be applicable.

Please confirm if you would still like to return the items and please also confirm the reason for your return so that we can raise the relevant return documents at our offices.

I apologise for any inconvenience caused.

Kind Regards ()

Upon confirming that yes, I still do require a refund, I got this 2nd response…


Dear () Thank you for your email. As the item has been opened we would not able to accept this back. The website gives information on the product to see if this is suitable or not. I am sorry but it is procedures which we do have to folllow. I do apologies for the inconvenience caused to you. Kind regards ()

So as you can see, I’m being COMPLETELY REFUSED a refund because THE PRODUCT WAS OPENED! I’m also expected to see the suitability of an item with just a small jpeg on their website. Absurd.

What I’d like to ask is: how can I get the OFT to help me? Is there a specific procedure I need to follow?

Thanks,

D.

Hi Darren,

It’s both disappointing and frustrating to see UK sellers trying to avoid their legal responsibilities. All you can do is to stick to your guns, and point out the specific terms in the Distance Selling Act that they’re bound to adhere to.

If the item you’re trying to return was purchased with a Credit Card and cost more than £100 then you have additional protection – contact your Card provider, send them your correspondence with the company in question (pointing out their non-compliance with UK law), and claim a refund from the card provider. It then becomes their problem rather than yours.

If you didn’t use a Credit Card or the value was less than £100 and the company won’t play ball, then your only options are the Office of Fair Trading/Trading Standards and, if it comes down to it, the small claims court. Unless the item in question cost thousands of pounds, though, the SCC is unlikely to be an economic option.

Your best bet is to directly quote the relevant passages from the DSRs to address their specific points, pointing out plainly that these are not optional – they are UK law.

Hope this helps – and please let me know how you get on!

All the best,

Stuart

Thanks for your help Stuart, much appreciated.

They’ve gone quiet today since I replied yesterday explaining how their contract and terms are unlawful.

Would you say that the OFT aren’t that useful in these situations? I was under the impression that they were quite powerful.

Best,

Darren.

I find your comments useful. I am a professional adviser providing a service to which the dsr do not apply, also my website is non-transactional. Also my terms of engagement differ from dsr requirements. However I am inspired to add a section to my website explaining to potential clients rights and what they would/could be letting themselves in for if they instruct me to act for them. Within my field it’s possible that the client ps could be substantially out of pocket if the outcome is not in their favour through no fault of mine.

One point that I encounter when cancelling an order is that the seller invariably wants a reason for the cancellation. It’s not necessary for the purchaser to give a reason ( when the goods are not faulty) and it may be bearing that in mind.

I purchased a dual chamber topper from John Lewis online and when i discovered it was not possible to separate the layers emailed them to return it and they said their policy was not to allow returns on mattresses and bedding. However the page I purchased it shows a delivery and returns and when I clicked on that got this:

If you’re not completely happy with your item, return it to us for FREE via:

Royal Mail
Fill out your reason(s) for return on the back of the delivery note and use the pre-paid Royal Mail Returns label.

John Lewis shops
Take the product and your delivery note to the appropriate department in any of our shops.

Exceptions apply, such as for perishable, personalised and made to order products; see returns and refunds information

Further clicking ion this link produces this:

Refund policy

We want you to be happy with your purchase. If you’re not, just return the product to us or to one of our shops, following the instructions above, and we’ll exchange or refund it. Please see below for products excluded from this policy.

Under the Distance Selling Regulations, if you buy online or by phone, your consumer rights entitle you to a full refund if you request one in writing within 7 working days of receipt. This includes any delivery charge, but excludes the products listed as exceptions below.

Proof of purchase

You may return items to our shops for refund or exchange even if you’ve mislaid the receipt or delivery note. Please note though, that any refund will be at the discretion of our shop staff, and will normally be given in gift vouchers to the value of the current selling price. Ordinarily if you have your receipt or delivery note we’ll refund the original debit, credit or charge card used to purchase.

Condition of returns

It’s important that returned items are in the best possible condition, so please take reasonable care of them and keep all packaging. We don’t have a set time limit on returns, but if you change your mind about your purchase, it can make your return easier and quicker to administer if you bring the item back as soon as possible.

See terms and conditions here, and information on Distance Selling Regulations.

Delivery charges

We’ll refund any delivery charges you’ve paid, provided you return the full order (UK orders only).
Products we’re unable to cancel, refund or exchange

Unless faulty or not as described, we cannot refund or offer an exchange on:
personalised or made-to-measure products
perishable goods such as flowers and food
unsealed CDs, DVDs, tapes or other recording media, software or video
We’re unable to accept order cancellations for these products.

Wines can only be returned in full cases.

This does not affect your statutory rights.

Buying made-to-measure curtains and blinds

For made to order curtains and blinds, we provide comprehensive guidelines on measuring up, so we do recommend you use these before committing to your order. Take a look at our made to order Curtains and Blinds buying guides
Buying furniture, large electrical appliances and outdoor toys

Please check the dimensions of the delivery address for access (including doors, corridors, stairs and corners), as well as the proposed location, before you order large pieces of furniture, electrical appliances or outdoor toys, to confirm that the product is the right size for your needs, and to enable us to deliver your order successfully.

I followed up my original request for a refund with a reminder of DSR and got an automated reply stating they were busy and would get back in 48 hours. I followed that with another reminder and request as I want the money back to buy the one I want from another supplier before it goes up to full price and got another automated response stating the 48 hour policy. I’m disgusted with them as they trade on their customer relations and service reputation.

Hi Dolores,

This initially looks like one of those unfortunate grey areas – the key section in the DSR PDF, above, is 3.38:

Unless you have agreed that they can, your consumers cannot cancel if the order is for:

  • services where you have had the consumer’s agreement to start the service before the end of the usual cancellation period and you have provided the consumer with the required written information before you start the service, including information that the cancellation rights will end as soon as you start the service
  • goods or services where the price depends on fluctuations in the financial markets which cannot be controlled by the supplier
  • the supply of goods made to the consumer’s own specification such as custom-made blinds or curtains. But this exception does not apply to upgrade options such as choosing alloy wheels when buying a car; or opting for add-on memory or choosing a combination of standard-off-the shelf components when ordering a PC, for example
  • goods that by reason of their nature cannot be returned
  • perishable goods like fresh foods or fresh cut flowers
  • audio or video recordings or computer software that the customer has unsealed
  • newspapers, periodicals or magazines, and
  • gaming, betting and lottery services.

(Notice how the media and software sectors seem to be getting special treatment here? Booksellers must be seething – customers could legitimately pre-order the latest big new release, read it within fourteen days, and return the book for a full refund… although section 3.40 does state that the regulations only apply if “the consumer has done no more than examine the goods as they would have in a shop“, so the tome couldn’t be returned well-thumbed.)

As is obvious, section 3.38 has an exception large enough to drive an articulated lorry through. All is not lost, though, as section 3.41 clarifies with:

The first question to consider is whether such items fall under the exceptions listed at paragraph 3.38, for example goods that by reason of their nature cannot be returned. The DSRs do not define this category any further but we consider this exception to apply only where returning the goods is a physical impossibility or where they cannot be restored in the same physical state as they were supplied. This exception may apply, for example, to items such as latex or nylon clothing which could become distorted once worn.

Your winner, though, is section 3.42:

We are conscious of concerns about reselling items which may raise concerns about hygiene. However, the DSRs do not link cancellation rights with a supplier’s ability to resell items as new.

… and section 3.44 hammers this home with:

It may be reasonable for the supplier to stipulate what they consider to be reasonable care, such as not removing hygiene seals on garments or only trying out shoes indoors. But these stipulations cannot restrict a consumer’s reasonable opportunity to inspect and assess the product. Consumers have the right to cancel even if they fail to take reasonable care of the goods;

… so, according to UK regulations, John Lewis have no grounds on which to refuse the return of bedding, even if unpacked.

So long as the purchase was made on-line or mail-order, and so there was no opportunity to inspect the goods prior to purchase, then John Lewis must accept the return.

In my experience, John Lewis customer service has always been excellent – I’d recommend getting them on the phone, and in a calm and non-aggressive manner, clearly explain the situation. Remember to ask to speak to the customer-care manager if you don’t feel you are making progress, and don’t resort to quoting the regulations immediately – but know where you stand if they are not being responsive or try to fob you off.

… and please let us know how you get on!

Dear Stuart,

I bought a Siemens induction hob by telephone from a company called Hispek on 2nd Jan which was delivered on 16 Jan. On 19th Jan I sent them an email stating that I needed to return the item as it could not be installed in my kitchen.

They have said it will be subject to a 30% restocking fee. When I questioned their right to do this under the distance selling regulations I was told that because I didn’t quote the regulations in my email and did not say that I was returning them under this legislation then I wasn’t covered by it.

I have been advised that they are potentially acting illegally by doing this. I have also read the relevant section of the legislation which states that

” a notice of cancellation is a notice in writing or in another durable medium available and accessible to the supplier (or to the other person to whom it is given) which, however expressed, indicates the intention of the consumer to cancel the contract.”

In my email I used the words ‘I need to return the hob to you’ and I explained why I did not want it.

In your opinion does this indicate that I wish to cancel the contract? I think that they are going to say that I did not specifically use the word contract or cancel and therefore did not cancel the contract until after the 7 day cooling off period. However, they replied to my email on 21 Jan and seemed to understand that I didn’t want it anymore!

They also want to charge me over £50 for its return, a service I can buy from TNT for £8.49 +VAT.

If they refuse to give me my money back in full, what can I do? Should I send the hob back now, before they insist on collecting it at an extortionate price?

Your advice would be greatly appreciated!

Sara

Hi Sara,

Clearly, you’re dealing with a company not to be trusted, and who are trying to fob you off. Of course, if you are returning an item and requesting a full refund then whether you cite the DSRs or not you still have the full protection of the law. I would suggest that you immediately:

  • Talk to the company again – a different person might be better informed of the company’s statutory responsibilities. Don’t be afraid to state that you feel you are not being fully understood or correctly informed, and ask to speak to the customer service agent’s line-manager. The Customer Service department may be rewarded for recovering any costs they can from cancellations…
  • Contact your credit-card provider (if the hob was paid for with plastic) as they must provide cover for items costing £100 and more. Explain the situation and state that you want the payment held or cancelled. The card provider will likely request that you deal with the company to resolve things, but stick to your guns and insist that the payment be held (again asking to speak to a manager if necessary) and you should get results;
  • Contact the Trading Standards office local to the company giving you problems, and discuss the issue with them – they should be able to advise on how to proceed.

I once had to involve Trading Standards when I attempted to return an item which I stated was Not Fit For Purpose (a concept from the Sale of Goods Act) and therefore I requested a full refund under the Distance Selling Regulations. The company refused, and when Trading Standards became involved the company claimed they were handling the term under the SoG rather than DSR regulations. Clearly they have no grounds for this (and the case was eventually settled to my satisfaction) – but it just goes to show that it’s dangerous to give a dishonest organisation any leeway.

You’re actually perfectly legally entitled to inform the company that you wish to receive a full refund whilst retaining the goods in question, so long as you maintain your duty of care. Technically, even accidental damage doesn’t in any way affect your right to a complete refund – although I suspect that this would be a difficult situation to resolve in real life.

Finally, bear in mind that unless the company has explicitly stated in their terms and conditions that you are liable for the cost of return shipping or collection then you’re allowed to temporarily hold onto the goods, receive a refund, and not under any obligation to contribute a penny towards returns costs!

Leave a Reply